Comments on the Appellator Graham Affair
Steve Charnovitz
2 December 2019
A report on World Trade Online this afternoon states that Appellate Body Chair Thomas Graham is threatening to resign from the Appellate Body when his term ends on December 10 unless the WTO ousts the Mr. Werner Zdouc, the accomplished and respected Director of the Appellate Body Secretariat.
I hope that this report is not true.
Back in September, this Blog featured a report that Mr. Graham was threatening to resign unless the WTO moved to adopt changes in DSU rules that addressed criticisms by the US.
In response, on 26 September 2019, I posted the following comment on the Blog:
"I have no problem with Graham quitting on December 10. He signed on for 8 years and the 8 years are almost over. It's not his fault that the US government has blocked a replacement for him. The replacement should have been agreed to months ago so that the new member could have been available on December 10. I would object to Graham's reported statement that whether he stays or not depends on whether the WTO adopts reforms. It is clearly inappropriate for Appelators to insert themselves into WTO negotiations. I have also taken note of Appellate Body Rule 2(3) which states 'A Member shall exercise his/her office without accepting or seeking instructions from any international, governmental, or non-governmental organization or any private source.' In my view, an Appellate Body member who cannot abide by that requirement should not continue to serve on the Appellate Body."
In response to my comment, on 28 September, Mr. Graham posted on the Blog:
"The remark about Rule 2(3) requires a reply. When I joined the AB eight years ago, I said I would never take a position because it was a position of my government, but equally, I would not be intimidated out of taking a position that coincided with that of my government, if I believed the position was correct. I have lived by that principle and continue to do so in the present circumstances. It would be more constructive to address my positions on their merits, instead of by insinuation."
At that time, in late September, out of respect for the court, I decided to give Mr. Graham the last word.
But with the latest news, the time has come to address Mr. Graham's statements on the merits.
As I said back in September, I have no problem with a decision by Mr. Graham to step down on December 10. He has no obligation to stay on if he doesn't want to see his ongoing cases to conclusion. As I said, it's not his fault that a new appellator is not on deck to take over his seat on December 10 under Rule 13.
But I do have a problem with Appellate Body members seeking to insinuate themselves into the international legislative process by unilaterally lobbying for particular changes in WTO rules or for a particular timetable to make legislative changes. The role of the WTO appellate judge is to remain impartial in deciding cases and to avoid taking any political positions within the WTO. On the merits, WTO judges should stay out of WTO negotiations unless their technical advice is specifically requested by negotiators.
As to the directorship of the Appellate Body secretariat, while I am not familiar with the customary practices for the selection of Appellate Body staff, I presume that the Appellate Body should have some say in the Director's post. With only three appellators in place, however, the Appellate Body lacks a quorum to act on personnel matters. (Indeed, in the present circumstances, I question the assumption that an Appellate Body member whose term has expired can complete any appeal under Rule 15 because gaining the authorization of the Appellate Body is a prerequisite for such an extension of service.) Therefore, I see no reason for the WTO Director-General to take any guidance regarding Mr. Zdouc from Mr. Graham. Indeed, if the report is true that the Director-General has resisted pressure from Mr. Graham to oust Mr. Zdouc, then I commend the Director-General for providing yet another example of his continuing strong and enlightened leadership.
Werner Zdouc is a distinguished international civil servant and he deserves better than to be held hostage to the continuing assaults by the Trump Administration on world trade and international law.
